Editor's Note

The FOI Advocate is a compendium of ideas, edited story excerpts and other materials from a variety of Web sites, as well as original concepts and analysis. When the information comes directly from another source, it will be attributed and a link will be provided whenever possible. The blog relies on the accuracy and integrity of the original sources cited. We will correct errors and inaccuracies when we become aware of them.

Thursday, April 29, 2010

Alabama Governor Bob Riley signed into law a bill that exempts 911 recordings from release under the state's public records laws. Only a court order will compel the disclosure of the audio tapes if the court first finds the public interest outweighs the individual's privacy interest. Transcripts of the 911 calls may be release for a "reasonable fee."

The Honolulu Advertiser used a FOIA request to discover that the ABC series "Lost" spent $228 million filming in Hawaii from 2006 to 2009 and employed an average of 973 people for each of the four years.

The FBI has a new electronic form designed to make requesting information easier. In addition, the bureau has retooled it records website, including a guide for research in FBI Records.

Of course, filing a request has always been the easiest part of making a FOIA request of the FBI. George Washington University's National Security Archive has criticized the bureau for its high percentage of "no records exist" responses in 2008, and the low percentage of requests granted by the FBIA.

"Trust but verify, I like that," said U.S. Supreme Court Justice AnontinScalia during the oral arguments in the case of Doe v. Reed, a case to decide whether the signature petitions to overturn Washington state's R-71 are public records and can be disclosed.

Justice Scalia's statements hint that the state public records law will prevail. He noted that voting was public for the first century of U.S. history, "you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for -- the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process."

Monday, April 26, 2010

The Committee to Protect Journalists says the Obama administration's Open Government Initiative needs "teeth and muscles if the new promise is to produce any better results" than previous administrations.

Citing failures of the military to be forthcoming about various incidents, including the 2007 New Baghdad shooting where U.S. forces fired on Iraqi civilians, killing many, including two Reuters journalists. After the website WikiLeaks posted a classified video online on April 5, the Pentagon posted a redacted assessment of the incident, concluding U.S. troops fired "in accordance with the law of armed conflict and rules of engagement."

The Senate Judiciary Committee approved a bill to establish a commission to study why thousands of requests for government information are backlogged, sometimes for years, and to study why FOIA exemptions have been increasingly cited by federal agencies to prevent the release of information.

"The test of right-to-know laws is the accessibility to the information that public officials don't want to give you," writes J.H. Snider in an opinion piece for The Washington Post.

Snider details the difficulties and struggles he's encountered trying to obtain public information from officials in Maryland.

He argues the state should adopt legislation that makes information online and free to the public from the moment of its creation. He also suggests document creation be separated from control. "Until now, the only practical option was to give the foxes control of the chicken coop; that is, creators of public records also had control of access to them," writes Snider. "But with the advent of the Internet, this argument no longer holds." An independent body could be used to archive and post materials online, suggests Snider.

Sunday, April 18, 2010

Californians Aware, an open government group, filed suite against California State University, Stanislaus, seeking the release of information related to a planned speech by Sarah Palin. The group would like the contract between Palin and the school nonprofit foundation, which the school says are exempt from the California Public Records Act.

Several CSU Stanislaus students retrieved portions of the contract from a trash bin outside the campus administration building. The document outlines perks like first-class airfare for two and luxury hotel accommodations. It also sets forth the manner in which pre-screened questions will be asked by a moderator. The amount of the speaking fee has not been disclosed.

New Mexico Attorney General Gary King says Gov. Bill Richardson's office may have violated the state's open records laws when it did not disclose the names of workers who lost their jobs, the agencies they worked for or their salaries in response to news media requests for that information. Richardson disagrees with the attorney general's opinion.

Betsy Russell, a Boise reporter for the Spokesman-Review in Spokane, won the 2010 Max Dalton Open Government Award from the Idaho Newspaper Foundation. Russell has been president of the Idaho Press Club and chair of the Idahoans for Openness in Government since 2004. She also serves on the Idaho Supreme Court's Media/Courts Committee. Russell has worked to strengthen the state's open meeting and public records laws.

A January 2010 inspection report covering the Massey Energy Upper Big Branch Mine in West Virginia shows a federal safety inspector saw a flawed ventilation system and was told "not to worry about it," reports The Huffington Post. The company was fined $70,000 for an "unwarrantable failure" to follow safety rules. The Charleston Gazette's Ken Ward Jr. first reported about the documents, which weren't released by the Mine Safety and Health Administration (MSHA) until more than a week after the April mine explosion.

The timing leaves journalists wondering if a more transparent MSHA could have averted the mine disaster. The Huffington Post reports how Ellen Smith, the managing editor of the Mine Safety and Health News newsletter, used to praise MSHA for its freedom of information work until the Bush administration used the 9/11 attacks as a reason to clamp down on information. Despite the Obama administration's emphasis on improved transparency, Smith thinks disclosure has gotten worse under Obama.

Friday, April 16, 2010

The U.S. Public Interest Research Group gave Kentucky top marks for effectiveness in providing online access to government spending information. Kentucky was the only state to earn an "A" in the category. Kentucky updates information twice daily on state agency budgets, salary information for state employees, and databases for grants, contracts, and line-item expenditures.

At least 32 states currently provide online access to government expenditures.

In addition to crime scene photographs, the Georgia Senate also wants to exclude 911 emergency calls that reveal a victim's "personal suffering" from the state's Open Records Act. It was an amendment to the bill unanimously passed by the House that excludes crime scene photographs from the Open Records Act.

Attorney General Eric Holder told the Senate Judiciary Committee he was troubled by the findings of The Associated Press regarding FOIA statistics that showed the administration was citing FOIA exceptions to withhold records more often, even as requests for information has decreased. He said he would find out why the use of exceptions has increased, despite President Barack Obama's directions for more openness.

Thursday, April 15, 2010

The Charleston Gazette would like the federal and state investigations into the Massey Mine Disaster of April 11 to be public hearings. To allow investigative interviews to be conducted in the open, despite the U.S. Mine Safety and Health Administration's historic insistence that the proceedings be conducted behind closed doors. The question remains, will President Barack Obama's open government initiatives have any influence on the proceedings?

The Columbia Journalism Review challenged the blogosphere to debate the question: What should remain private in a world where everything could be public?

The question stems from the Georgia House's unanimous passage of a bill that prohibits all but credentialed press members from viewing crime scene photos. Even the press, though, cannot remove or copy the photos and must view them under the supervision of a Georgia Bureau of Investigations records custodian. Legislators moved to pass the bill after a Hustler true-crime writer made an open records request to view the autopsy report and crime scene photographs of 24 year-old Meredith Emerson, who was murdered while hiking near the Appalachian Trail in 2008. The photos are said to depict Emerson's nude, decapitated body.

The Columbia Journalism Review argues the issues raised by the crime scene photograph requests should be made on a case-by-case basis.

Idaho Gov. C.L. "Butch" Otter signed a law on April 8 that removes state-issued hunting permits, licenses and tags from the public record and that makes it illegal to "harass, intimidate or threaten" hunters via telephone, e-mail or website postings. The move of creating a public records exemption for a specific, small group sets a dangerous precedent and threatens to chisel away at transparency laws to where they become obsolete.

The Idaho law was prompted by the records request of a local activist who then posted the names of wolf hunters on a website.

Tuesday, April 13, 2010

The Fraternal Order of Police has sued the city of Jacksonville, Florida, over an 85-point public records request last fall that has gone unfulfilled. Among the records sought are e-mails from Mayor John Peyton's staff and City Council members regarding a proposed 3-percent pay cut for the police union and other unions.

The city says the records need to be reviewed by attorneys and redacted for negotiating strategy information.

The University of Texas System, comprised of 15 academic and health campuses, is withholding its annual tax return filings pending a ruling of the Texas attorney general's office and an IRS audit of the system. In contrast, the Texas A&M University System says its tax return is a public record under state law, despite also being the focus of an IRS audit.

ProPublica obtained a list from a Federal Aviation Administration program that allows aircraft owners to block flight information from tracking websites. Among those who have asked to be placed on the list:

South Dakota Gov. Mike Rounds - The superintendent of the state's Highway Patrol said the aircraft was placed on the list for security reasons;

Aircrafts owned by an University of Alabama athletic booster club, the University of Florida, Penn State and the University of Mississippi;

Coby Brooks, the CEO of Hooters - the Hooters spokesman said they use the plane to conduct unannounced checks on restaurants; and

Televangelist Kenneth Copeland and his Eagle Mountain International Church in Newark, Texas.

For a more complete list of aircrafts on the special FAA list, click here.

Thursday, April 08, 2010

After Columbia, Missouri voters approved placing security cameras downtown, one resident started the COMO Surveillance Camera Players. The idea is to have the actors perform in front of the cameras and then make a Sunshine Law request for the video.

The group of more than a hundred envisions doing art, reading poetry, and making political messages for the downtown cameras. The group's leader, Shane Ferguson, says the performers themselves may discourage crime. "What criminals are going to go where there are a bunch of artsy fartsy things happening in front of a camera?" Ferguson asked.

The First Amendment Coalition has filed requests under the Public Records Act for the speaking contracts for Sarah Palin's planned appearance at a fundraising event for CSU Stanislaus in June and for Bill Clinton's speech at UC Berkeley in February.

For more about the legal issues raised by these records requests, click here.

Former technology director Harriett White won a victory on several of her claims in a lawsuit against her former employer, the Brush School District in Colorado. A district court judge has ordered the school board to release complete or partial records from 11 closed-door meetings conducted in violation of the Colorado Open Meetings Law. The lawsuit touches on nearly every executive session held by the school board during 2009.

A spokesman for U.S. Central Command says the U.S. military cannot find its copy of a video showing two Reuters news agency employees being killed by Army helicopters in 2007. A leaked version of the video circulated the Internet and was posted on Wikileaks.org on the "collateralmurder.com" site.

The video includes audio of troops calling to "light 'em up!" and referring to the men as "dead bastards." An internal investigation concluded the troops acted appropriately, despite mistaking the camera equipment for weapons.

The New Mexico Foundation for Open Government awarded state Rep. Janice Arnold-Jones the 2010 William S. Dixon First Amendment Freedom Award for her efforts to force webcasting at the state Legislature. Arnold-Jones won in the category for law and government.

Heath Haussamen of NMPolitics.net nominated Arnold-Jones, writing "it's rare for an elected official to stand up to a broken system in such a courageous manner and start a movement that so dramatically changes things."

Other award winners this year include Norman Becker, president and CEO of New Mexico Mutual; Winston Brooks, superintendent of the Albuquerque Public Schools; attorney Hal Simmons; and Robert B. Trapp, managing editor of the Rio Grande Sun.

Wednesday, April 07, 2010

Nebraska Gov. Dave Heineman signed into law a measure to force governmental bodies to report legal settlements on their meeting agendas. The measure also says entities cannot use confidentiality agreements as an excuse to keep settlements secret.

The law was prompted by a secret $200,000 payment to an aide of a former Papillion mayor last year after the aide alleged former Mayor James Blinn had sexually harassed and assaulted her.

Federal departments and agencies released their Open Government Plans today. The Plains aim to make operations and data more transparent and increase opportunities for citizen oversight of the government.

Examples of each agency's "flagship initiative" include:

Department of Health and Human Services' Community Health Data Initiative: The department will provide a free, large-scale Community Health Data Set including downloadable data on community health care costs, quality, access, and public health.

Department of Energy's Open Energy Information Initiative: The department will make more than 60 clean energy resources and data sets, including maps of worldwide solar and wind potential, information on climate zones, and best practices available.

Department of Housing and Urban Development's Homelessness Prevention Resources Initiative: The department will develop tools to predict communities that are at risk so that resources can be allotted to prevent homelessness.

The Yamhill County, Oregon, district attorney denied access to records of a police investigation into the death of a 6-year-old girl. The medical examiner concluded the child committed suicide, while the police detectives believed the death was an accident. The district attorney said there was no evidence of abuse or foul play.

The McMinnville Police Department refused to release the investigation documents on grounds that the public records law allows documents to be withheld if releasing them would be a "highly offensive" invasion. District Attorney Brad Berry refused to release the documents on grounds that the public interest fails to outweigh the invasion of personal privacy to the family of Samantha Kuberski.

State Department of Human Services officials say the girl is thought to be the youngest person to ever commit suicide in Oregon.

As Austin, Texas, seeks to get 30 percent of its power from renewable energy sources by 2020, big industrials, environmental activists, and civic watchdogs find themselves agreeing on another goal - increased disclosure from Austin Energy.

The groups point to a $2.3 billion deal for a wood waste plant, a deal signed two years ago without much public scrutiny or input. Austin Energy officials have acknowledged they mishandled public debate over the wood waste plant, which did not begin until the City Council voted to sign the contract.

Austin Energy says it is reviewing its information with an eye toward increased disclosure without compromising its confidential information.

The Taxpayer Association of Kane County, Utah, was astounded when it received the estimated cost of its request for records regarding how much the county has spent battling the federal Bureau of Land Management regarding ownership of public roads in southern Utah -- $27,000 and a few years.

The group does not take a position in the litigation over the removal of 31 BLM road closure signs on hundreds of public roads in 2003, but it does want to know how much the fight has cost the county. The taxpayer group requested information regarding how much money has been spent from the general fund; how much time county employees have spent on road projects; how much has been spent on private contractors; all attorneys fees; any costs for vehicles or equipment; per diem costs for associated travel; and any surveys and maps created.

The Kane County attorney maintains the scope of the request is too broad and vague to merit a reasonable response in terms of cost and time, estimating it would take two paid researchers at least 1,500 hours to gather the information requested.

While the state legislature considers restricting public access to birth dates of state employees, The Oklahoman reports that Oklahoma has made at least $65 million selling the same personal information from its motor vehicle records to private companies like NIC Inc., ChoicePoint/LexisNexis, Insurance Information Exchange, American Driving Records, and Acxiom Information Security Services.

As a defense to a lawsuit alleging that a February 3 meeting violated the Open Meetings Act, the University of Michigan Board of Regents is asserting that the law is unconstitutional. The meeting was allegedly held to discuss an NCAA probe into the university football program, and the school asserts the meeting was closed for attorney-client privileged communications.

The university's brief argues the Open Meetings Act is an "unconstitutional infringement upon the Regents' autonomy and authority over the general supervision of the University of Michigan."